KAJEM MOHAMMAD ABDULLAH AL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3557/2019

[2025] HKCFI 2044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3557 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 dated 2 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 21 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 25 May 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds other than torture risk.

Background

2.  The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by people from the Awami League (AI) as he was involved with Bangladesh Nationalist Party (BNP), and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  I am not remotely satisfied that the Applicant has shown that his intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

4.  In view of the seriousness of the issues at hand, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risks of harm, state protection and viability of internal relocation, and observed a very high standard of fairness:

(1)  The Board had reviewed the Hearing Bundle concerning the Applicant and considered all the relevant materials, including the TCF dated 24 June 2013, the record of the torture claim interview on 16 July 2013, the SCF dated 25 April 2018, the record of the interview in 2018, the Director’s Notice of Decision dated 25 May 2018, the NOA dated 6 June 2018, and the country of origin information from a variety of sources.

(2)  In addition, the Board had carefully considered the Applicant’s evidence given during the hearing, noting that he had eight years of education and approximately three years of work experience before he left Bangladesh on 4 April 2013.

(3)  The Board had also devoted a significant part of its decision discussing the various concerns it had regarding the Applicant’s evidence of his BNP support. After considering the Applicant’s evidence as a whole, the Board found that there were many serious discrepancies and deficiencies. The Board concluded that while it was possible that the Applicant and his family held views sympathetic or supportive to the BNP, it was not satisfied that he was an active supporter, member or Union level president of the BNP.

(4)  When considering the reasonableness of internal relocation, the Board had taken into account the Applicant’s argument that he had no network or financial ability to start afresh in a new area. However, the Board was of the view that the Applicant was a young, able-bodied man with some education and work experience in farming. He was able to reside in a large urban city such as Hong Kong. He had no children and his wife was then employed as a domestic helper in Hong Kong. The Board did not agree that it would be unduly harsh for him to relocate, should he wish to do so.

(5)  Based on these findings, the Board found that there was no real risk that the Applicant would be arbitrarily deprived of his life, imposed death penalty, or otherwise be deprived of his rights under BOR 2. The Board also did not accept that substantial grounds existed for believing that the Applicant was at real risk of being subjected to torture or CIDTP if returned to Bangladesh so as to constitute a breach of BOR 3, or that he had a well-founded fear of persecution for a Convention reason.

5.  In light of the above, it is simply factually incorrect for the Applicant to allege that the Board did not investigate his issues properly and relied solely on his “speech”, without consideration of his education, political and economic status, etc.

6.  In any event, it was primarily within the province of the Board to assess evidence, COI materials, risk of harm, and viability of internal relocation, etc. In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide his “political problems” afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).

Conclusion

7.  For these reasons, I have dismissed the Leave Application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1